Unpacking the registration of foreign judgments

RODGER GAIKO AND FUNGAI CHIMWAMUROMBE

The Law that regulates and governs the registration and recognition of Decrees of Civil courts of a designated foreign country is trite and settled.

It is enshrined and espoused in the Civil Matters Assistance Act [Chapter 8:02]. The most salient provisions therefore being section 5(1) et seq titled application for registration of foreign judgment which reads as follows:

Subject to subsection (2), a judgment creditor under a judgment given in a designated country may apply to an appropriate court for the registration of that judgment in the appropriate court.

An application under subsection (1) for the registration of a judgment (a) may be made at any time within six years after (i) the date of the judgment; or (ii) the determination of any proceedings by way of appeal or review, where such proceedings have been instituted in respect of the judgment; and (b) shall be made in the form and manner prescribed in rules of court applicable to the appropriate court.

Section 2 of the same Act defines the word judgement by providing that a judgement means-

‘a judgement or order given or made by any court or tribunal requiring the payment of money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings.

This section has been subject to judicial construction and interpretation. In the case of Makoni v Makoni HH 222-23 wherein the High Court per WAMAMBO J instructively held that:

The Civil Matters Assistance Act [Chapter 8:02] in s 5 to 7 deals with applications for registration of a foreign judgment, grant or refusal of such application and registration of foreign judgments and effect of registration. It will be noted that the above sections are specifically confined to judgments from a designated country. A designated country is defined as “a foreign country or territory” declared to be a designated country in terms of subsection (2) of section three. Relevant for purposes of the instant matter is that the United Kingdom is not a designated country. Thus, the Civil Matters (Mutual Assistance Act) [Chapter 8:02] is not relevant in the instant matter.

The schedule to the Civil Matters (Mutual Assistance) (Designated Countries) Order, 1998 consist of a numerus clausus or a closed list or an exhaustive list of the designated countries for the purposes of the section 5 of the Civil Matters (Mutual Assistance) Act namely Australia, Dominica, Germany, Ghana, Portugal, South Africa, Italy, Zambia, Slovak Republic and Bulgaria.

The judgments that may be registered in terms of the Act are judgements given in designated countries and sounding in money. The use of the word means in section two which define the word judgement is exhaustive and the enumeration that is provided thereby is there a complete enumeration or description or numerous clausus. Only judgments that fits and meet the description are covered. The judgments that may be registered in terms of that Act are judgements given in designated countries.

Section 5 can only be relied upon if and only if the judgement sought to be enforced by the applicant emanated from a recognised designated country. In a nutshell it is clear that for a judgment to be regitrsable under the Civil matters Mutual Assiatance Act it must emantate from a designated country and that it must be a judgement sounding in money.

Gaiko is a legal intern at Zenas Legal Practice and can be contacted on +263 77 251 7554 and emailed on rodger@zenaslegalpractice.com

Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted at fungai@ zenaslegalpractice.com